SEAN J. GRIFFITH v. QUALITY DISTRIBUTION, INC.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SEAN J. GRIFFITH, )
)
Appellant, )
)
v. ) Case No. 2D17-3160
)
QUALITY DISTRIBUTION, INC.; GARY R. )
ENZOR; THOMAS R. MIKLICH; RICHARD )
B. MARCHESE; ALAN H. SCHUMACHER; )
ANNETTE M. SANDBERG; APAX )
PARTNERS LLP; APAX VII-A L.P.; APAX )
VII-B L.P.; APAX VIII-I L.P.; APAX VIII-2 )
L.P.; GRUDEN ACQUISITION, INC.; )
GRUDEN MERGER SUB, INC.; and )
RICHARD DELMAN, on behalf of himself )
and all others similarly situated, )
)
Appellees. )
)
Opinion filed July 13, 2018.
Appeal from the Circuit Court for
Hillsborough County; Steven Scott
Stephens, Judge.
Adam M. Schachter and Christian G.
Montelione of Gelber Schachter &
Greenberg, P.A., Miami; and Anthony A.
Rickey of Margrave Law LLC, Georgetown,
Delaware, for Appellant.
Ernest J. Marquart of Schumaker, Loop &
Kendrick, LLP, Tampa; and Peter L.
Simmons of Fried, Frank, Harris, Shriver &
Jacobson, LLP, New York, New York,
for Appellees Qualify Distribution, Inc.;
Gary R. Enzor; Thomas R. Miklich;
Richard B. Marchese; Alan H. Schumacher;
and Annette M. Sandberg.
Bryan D. Hull and J. Carter Anderson of
Bush Ross, P.A., Tampa; and Edward P.
Welch and Jenness E. Parker of Skadden,
Arps, Slate, Meagher & Flom LLP, Wilmington,
Delaware, for Appellees Apax Partners LLP;
Apax VIII-A L.P.; Apax VIII-B L.P.; Apax
VIII-I L.P.; Apax VIII-2 L.P.; Gruden
Acquisition, Inc.; and Gruden Merger Sub,
Inc.
John F. Keating, Jr., of The Brualdi Law
Firm, P.C., New York, New York; and
Kenneth J. Vianale and Julie Prag Vianale
of Vianale & Vianale LLP, Boca Raton,
for Appellee Richard Delman.
MORRIS, Judge.
Sean J. Griffith appeals an order certifying a class and approving a class
action settlement in a case brought by shareholders of Quality Distribution, Inc.
(Quality), against the corporation for breach of fiduciary duty and failure to disclose
relevant information relating to a proposed acquisition by Apax Partners, LLC (Apax).
We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A)
and 9.130(a)(3)(C)(vi). We affirm the trial court's certification of the class without further
comment; however, we reverse the trial court's approval of the class action settlement
and the denial of Griffith's request for fees.
I. Background
On May 6, 2015, Quality, a Florida corporation, announced that it had
entered into a merger agreement whereby Apax would acquire Quality for $16 per share
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of its publicly-traded stock. This price "represent[ed] an approximate premium of . . .
62% to the $9.85 closing price per share" on May 5, 2015, the day before the merger
was announced. The transaction was valued at $800 million, including the assumption
of Quality's debt by Apax. On June 8, 2015, Quality filed a preliminary proxy statement
with the Securities and Exchange Commission (SEC).
On June 17, 2015, Richard Delman, a shareholder of Quality, filed a class
action complaint against Quality, its board members, and Apax. Delman alleged a
count against the board members for breach of fiduciary duties, a count against Quality
and the board members for failure to disclose, and a count against Apax for aiding and
abetting in the breaches of fiduciary duties. Delman alleged that Quality and its board
members engaged in a flawed sale process and agreed to an inadequate sale price.
Delman also alleged that Quality and its board members failed to include in the proxy
statement information that is material to the shareholders' decisions on whether to
approve the merger.
On July 24, 2015, Delman filed a motion for preliminary injunction. Also in
July, Quality filed a definitive proxy statement with the SEC and the parties began to
engage in expedited discovery. Quality and Apax agreed to produce additional
documents, and Delman conducted two depositions, one of Quality's chief executive
officer and one of an executive from Quality's investment banker, RBC Capital Markets,
LLC (RBC). The parties engaged in settlement negotiations, and Delman notified the
court that there was no need to hold a hearing on his motion for preliminary injunction in
light of the settlement negotiations. By August 2015 the parties had reached a
settlement agreement. The agreement required Quality to serve its shareholders with
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supplemental disclosures containing information regarding the following: (1) potential
conflicts of interest of Quality's senior management and Apax's expressed intention to
retain Quality's management team as employees; (2) the potential conflicts of interest of
Quality's investment banker, RBC, and its connection with Apax; and (3) the sale
process and alternatives to the merger. On August 10, 2015, Quality filed the
supplemental disclosures with the SEC.
On August 18, 2015, 98.8% of the shareholders voted to approve the
merger with Apax.
On October 28, 2016, the parties entered into a formal stipulation of
settlement. On December 16, 2016, the parties filed a joint motion for entry of an order
granting joint motion for all parties for notice and hearing for settlement. The trial court
entered the requested order on January 20, 2017. The order directed Quality to serve
its shareholders with notice of the settlement, and it conditionally certified the
shareholders as a class of plaintiffs. The order also designated Delman as the class
representative, preliminarily approved the settlement, and set a hearing for April 24,
2017.
On April 3, 2017, Griffith filed an objection to the proposed settlement. He
had purchased $160 worth of Quality's shares after the merger was formally
announced. Griffith described himself as "an activist investor who has served as a
watchdog in the movement to curtail abusive [merger and acquisition] litigation."1 He
1Griffithis a professor of law at Fordham University School of Law. He
has coauthored various law review articles on the subject of disclosure settlements that
arise in the context of litigation involving corporate mergers. See, e.g., Jill E. Fisch,
Sean J. Griffith & Steven Davidoff Solomon, Confronting the Peppercorn Settlement in
Merger Litigation: An Empirical Analysis and a Proposal for Reform, 93 Tex. L. Rev. 557
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objected to the proposed settlement and class certification on four main grounds: (1) the
supplemental disclosures were not plainly material to the shareholder's decision on
whether to approve the merger, (2) the released claims had not been adequately
investigated by plaintiffs' counsel, (3) questions remain regarding the adequacy of class
counsel, and (4) plaintiffs' fee request should be rejected because the litigation did not
provide a substantial benefit to the shareholders. Griffith argued that Florida should
adopt the test for approval of "disclosure settlements" set forth in In re Trulia, Inc.
Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016). Last, Griffith asked the trial court
to retain jurisdiction so that he could submit a request for fees he incurred in objecting to
the settlement.
Delman filed memorandums of law in support of the proposed settlement
and in response to Griffith's objection. He also filed an affidavit from a financial analyst,
in which the analyst attested that the supplemental disclosures were material. Quality
and Apax filed a joint memorandum in support of the settlement and in opposition to
Griffith's objection.
On April 24, 2017, the trial court held a hearing at which the trial court
considered argument from all parties and Griffith. On June 21, 2017, the trial court
entered an order partially approving the class action settlement. The trial court
concluded that the settlement in this case "survives the heightened scrutiny standard,"
citing Grosso v. Fidelity National Title Insurance Co., 983 So. 2d 1165, 1170 (Fla. 3d
DCA 2008). The court also found that the four requirements for class certification are
(Feb. 2015); Sean J. Griffith & Alexandra D. Lahav, The Market for Preclusion in Merger
Litigation, 66 Vand. L. Rev. 1053 (May 2013). Griffith filed an amicus curiae brief in the
Delaware case he urges Florida to adopt. See In re Trulia, Inc. Stockholder Litigation,
129 A.3d 884 (Del. Ch. 2016).
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present. The court then went on to address Griffith's objection and his argument that In
re Trulia should apply. The court ruled that In re Trulia "is good law in Florida, at least
for the proposition that a class action settlement should not be approved when the
scope of the claims released exceeds the scope of the issues litigated in the case." The
trial court concluded that the release in this case is "narrowly tailored to match the
scope of the issues litigated in the case." Turning to whether the supplemental
disclosures were material, the trial court stated that even if they were immaterial, the
settlement "is the better choice among the alternatives."
[T]he Florida courts have such a strong policy favoring
resolution of cases by jury trial that an action of this nature
would almost certainly not be resolvable on summary
judgment. Plaintiffs have filed an affidavit from an
apparently qualified expert that would be sufficient to create
an issue of fact regarding the materiality of the disclosure.
Accordingly, the consequence of simply refusing to approve
the settlement would most likely be to require the case to
proceed to jury trial over the course of a year or two. Given
the finding above that the release is properly matched to the
scope of the issues litigated, the class is not damaged by the
settlement even if it was all a charade, if it can be protected
from excessive transaction costs. And since there is no
mention of the settlement of separate payment to the class
representative, transaction cos[t] issues are limited to
attorney fee issues.
(Footnote omitted.) The trial court further ruled that because the settlement does not
include plaintiffs' attorney's fees, the issue of fees would be determined in a true
adversarial process. The trial court approved the settlement, essentially reserving
jurisdiction on the issue of attorney's fees. The trial court denied Griffith's objection and
his request for fees. Griffith now appeals.2
2On June 28, 2017, Griffith filed a motion to intervene below, but the trial
court did not rule on the motion. As a member of the class who objected below, Griffith
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II. Analysis
On appeal, Griffith argues (1) that the trial court erred in approving the
settlement without applying the standard set forth in In re Trulia, (2) that the trial court
erred in certifying the class without considering whether class counsel provided the
class with adequate representation, and (3) that the trial court erred in denying his
request for fees. We find merit in his first argument.
"Where the parties, as here, seek certification of the class and approval of
their settlement simultaneously, the trial court is required to apply heightened scrutiny
and to take a more active role as a guardian of the interests of the absent class
members." Grosso, 983 So. 2d at 1170 (emphasis omitted). "To approve a class action
settlement, the trial court must find that the agreement was fair, reasonable, and
adequate." Id. at 1173 (first citing Fed. R. Civ. P. 23(e)(1)(C); and then citing Ramos v.
Philip Morris Cos., 743 So. 2d 24, 31 (Fla. 3d DCA 1999)). Some of the factors relevant
to that determination include:
(1) the complexity and duration of the litigation; (2) the
reaction of the class to the settlement; (3) the stage of the
proceedings; (4) the risk of establishing liability; (5) the risk
of establishing damages; (6) the risk of maintaining a class
action; (7) the ability of the defendant to withstand a greater
judgment; (8) the reasonableness of the settlement in light of
the best recovery; and (9) the range of reasonableness of
the settlement in light of all the attendant risks of litigation.
has standing to appeal the approval of a class settlement. See Addison v. City of
Tampa, 33 So. 3d 742, 745 (Fla. 2d DCA 2010) ("[T]he United States Supreme Court
has stated that unnamed class members are 'parties to the proceedings in the sense of
being bound by the settlement' and, therefore, are entitled to appeal the approval of a
class settlement." (quoting Devlin v. Scardelletti, 536 U.S. 1, 10 (2002))).
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Id. at 1173-74 (citing In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab.
Litig., 55 F.3d 768, 785 (3d Cir. 1995)).3
An appellate court generally reviews a ruling approving a class settlement
for abuse of discretion. Barnhill v. Fla. Microsoft Anti-Trust Litig., 905 So. 2d 195, 199
(Fla. 3d DCA 2005). But where the trial court applies the wrong law or the issue
involves a pure question of law, the ruling is reviewed de novo. See Van v. Schmidt,
122 So. 3d 243, 246 (Fla. 2013); G4S Secure Sols. USA, Inc. v. Golzar, 208 So. 3d
204, 207-08 (Fla. 3d DCA 2016).
Griffith contends that the trial court erred in failing to either apply the full
Grosso test or in failing to adopt the full In re Trulia standard, which he argues is
consistent with the Grosso test. He claims that the trial court improperly used a single-
factor test in ruling that a settlement may be approved as long as the proposed release
is commensurate with the claims raised in the case.
In In re Trulia, the Delaware Court of Chancery discussed the proliferation
of "disclosure settlements" and the problems associated with a request to approve such
a settlement. 129 A.3d at 887, 891-99.4 The court was asked to approve a proposed
3Courts have also used the following six factors:
1) the likelihood of success at trial; 2) the range of possible
recovery; 3) the point over or below the range of possible
recovery at which a settlement is fair, adequate, and
reasonable; 4) the complexity, expense, and duration of the
litigation; 5) the substance and amount of opposition to the
settlement; and 6) the stage of the proceedings at which the
settlement was achieved.
Nelson v. Wakulla County, 985 So. 2d 564, 570 (Fla. 1st DCA 2008).
4One scholar refers to such suits as "merger objection suits" or "strike
suits—meritless claims filed for their nuisance value—by entrepreneurial plaintiffs'
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settlement of a class action brought by shareholders of Trulia, Inc., for breach of
fiduciary duty relating to a proposed merger with Zillow, Inc. 129 A.3d at 887-88. The
parties engaged in limited discovery, and within four months after the complaint was
filed, the shareholders entered into an agreement to settle. Id. at 887.
In essence, Trulia agreed to supplement the proxy materials
disseminated to its stockholders before they voted on the
proposed transaction to include some additional information
that theoretically would allow the stockholders to be better
informed in exercising their franchise rights. In exchange,
plaintiffs dropped their motion to preliminarily enjoin the
transaction and agreed to provide a release of claims on
behalf of a proposed class of Trulia's stockholders. If
approved, the settlement will not provide Trulia stockholders
with any economic benefits. The only money that would
change hands is the payment of a fee to plaintiffs' counsel.
Id. at 887. The agreement provided that plaintiffs' counsel could seek an award of
attorney's fees and expenses up to $375,000. Id. at 889-90.
The Court of Chancery explained that "disclosure settlements" are
becoming increasingly more common:
Today, the public announcement of virtually every
transaction involving the acquisition of a public corporation
provokes a flurry of class action lawsuits alleging that the
target's directors breached their fiduciary duties by agreeing
attorneys." Browning Jeffries, The Plaintiff's Lawyer's Transaction Tax: The New Cost
of Doing Business in Public Company Deals, 11 Berkeley Bus. L.J. 55, 56 (Sept. 2014).
[I]n this new rash of suits, frequently entrepreneurial
plaintiffs' attorneys are filing boilerplate complaints for the
sole purpose of capitalizing on their ability to hold up the
transaction and perhaps force a quick settlement. Because
the litigation threatens the consummation of the deal if not
resolved quickly and because corporations may view the
settlement amount as a drop in the bucket compared to the
overall transaction amount, defendants are motivated to
settle even meritless claims.
Id. at 57-58 (footnotes omitted). Through the assessment of attorneys' fees, these suits
impose "what amounts to a transaction tax" on corporate merger deals. Id. at 108.
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to sell the corporation for an unfair price. On occasion,
although it is relatively infrequent, such litigation has
generated meaningful economic benefits for stockholders
when, for example, the integrity of a sales process has been
corrupted by conflicts of interest on the part of corporate
fiduciaries or their advisors. But far too often such litigation
serves no useful purpose for stockholders. Instead, it serves
only to generate fees for certain lawyers who are regular
players in the enterprise of routinely filing hastily drafted
complaints on behalf of stockholders on the heels of the
public announcement of a deal and settling quickly on terms
that yield no monetary compensation to the stockholders
they represent.
....
In just the past decade, the percentage of transactions of
$100 million or more that have triggered stockholder
litigation in this country has more than doubled, from 39.3%
in 2005 to a peak of 94.9% in 2014. Only recently has the
percentage decreased, falling to 87.7% in 2015 due to a
decline near the end of the year. In Delaware, the
percentage of such cases settled solely on the basis of
supplemental disclosures grew significantly from 45.4% in
2005 to a high of 76.0% in 2012, and only recently has seen
some decline. The increased prevalence of deal litigation
and disclosure settlements has drawn the attention of
academics, practitioners, and the judiciary.
Id. at 891-92, 894-95 (footnotes omitted). The court explained how such settlements
are achieved in these class action lawsuits:
In such lawsuits, plaintiffs' leverage is the threat of an
injunction to prevent a transaction from closing. Faced with
that threat, defendants are incentivized to settle quickly in
order to mitigate the considerable expense of litigation and
the distraction it entails, to achieve closing certainty, and to
obtain broad releases as a form of "deal insurance." . . . .
Once the litigation is on an expedited track and the
prospect of an injunction hearing looms, the most common
currency used to procure a settlement is the issuance of
supplemental disclosures to the target's stockholders before
they are asked to vote on the proposed transaction. The
theory behind making these disclosures is that, by having
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the additional information, stockholders will be better
informed when exercising their franchise rights. Given the
Court's historical practice of approving disclosure
settlements when the additional information is not material,
and indeed may be of only minor value to the stockholders,
providing supplemental disclosures is a particularly easy
"give" for defendants to make in exchange for a release.
Id. at 892-93 (footnotes omitted). The court further explained that "[o]nce an
agreement-in-principle is struck to settle for supplemental disclosures, the litigation
takes on an entirely different, non-adversarial character," which the court described as
problematic. Id. at 893.
The lack of an adversarial process often requires that
the Court become essentially a forensic examiner of proxy
materials so that it can play devil's advocate in probing the
value of the "get" for stockholders in a proposed disclosure
settlement. . . . In an adversarial process, defendants,
armed with the help of their financial advisors, would be
quick to contextualize the omissions [in the original
disclosures] and point out why the missing details are
immaterial (and may even be unhelpful) given [information]
already disclosed in the proxy. In the settlement context,
however, it falls to law-trained judges to attempt to perform
this function, however crudely, as best they can.
Id. at 894. The court opined that these dynamics and the court's willingness to approve
such settlements "have caused deal litigation to explode in the United States beyond
the realm of reason." Id.
The court concluded that in light of the concerns expressed above,
disclosure settlements should be met with disfavor "unless the supplemental disclosures
address a plainly material misrepresentation or omission[] and the subject matter of the
proposed release is narrowly circumscribed to encompass nothing more than disclosure
claims and fiduciary duty claims concerning the sale process, if the record shows that
such claims have been investigated sufficiently." Id. at 898. The supplemental
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information will be considered plainly material "if there is a substantial likelihood that a
reasonable shareholder would consider it important in deciding how to vote" or, in other
words, if "from the perspective of a reasonable stockholder, there is a substantial
likelihood that it 'significantly alter[s] the "total mix" of information made available.' " Id.
at 899 (alteration in original) (first quoting Rosenblatt v. Getty Oil Co., 493 A.2d 929,
944 (Del. 1985); and then quoting Arnold v. Soc'y for Sav. Bancorp, 650 A.2d 1270,
1277 (Del. 1994)).
The court analyzed the supplemental disclosures in that case and found
them to be immaterial. The court therefore declined to approve the proposed class
settlement, concluding that the terms were not "fair or reasonable to the affected class
members." Id. at 887, 907. In other words, "from the perspective of Trulia's
stockholders, the 'get' in the form of the [s]upplemental [d]isclosures does not provide
adequate consideration to warrant the 'give' of providing a release of claims." Id. at 907.
The Seventh Circuit applied the In re Trulia decision in rejecting a
proposed class settlement in what the court termed a "strike suit" or "deal litigation."
Hays v. Walgreen Co., 832 F.3d 718, 721 (7th Cir. 2016). The court noted that
[o]ften the suit asks primarily or even exclusively for
disclosure of details of the proposed transaction that could,
in principle at least, affect shareholder approval of the
transaction. But almost all such suits are designed to end—
and very quickly too—in a settlement in which class counsel
receive fees and the shareholders receive additional
disclosures concerning the proposed transaction. The
disclosures may be largely or even entirely worthless to the
shareholders, in which event even a modest award of
attorneys' fees ($370,000 in this case) is excessive and the
settlement should therefore be disapproved by the district
judge.
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Id. Recognizing that "Delaware's Court of Chancery sees many more cases involving
large transactions by public companies than the federal courts of [the Seventh Circuit],"
the court adopted the standard set forth in In re Trulia. Id. at 725. The court
emphasized that "the misrepresentation or omission that the supplemental disclosures
correct must be 'plainly material.' " Id. (quoting In re Trulia, 129 A.3d at 898-99). "If
immaterial their correction does nothing for the shareholders. And we add that it's not
enough that the disclosures address the misrepresentation or omissions: they must
correct them." Id. Because the supplemental disclosures in that case did not correct a
plainly material misrepresentation or omission in the original disclosure, the circuit court
reversed the district court's ruling approving the settlement. Id. at 725-76.
As noted by the trial court in its order in this case, the extent to which the
In re Trulia decision applies in Florida is a question of first impression in the appellate
courts.5 In deciding whether to apply the In re Trulia standard to the instant case, we
5We note that one Florida trial court has considered a disclosure
settlement and reached a similar conclusion as the court did in In re Trulia. Fruchter v.
Fla. Progress Corp., No. 99-6167CI-20, 2002 WL 1558220 (Fla. 6th Cir. Ct. Mar. 20,
2002). The trial court declined to certify the class, approve a stipulated settlement, and
award fees to plaintiff's counsel. In declining to approve the settlement, the trial court
stated the following:
[T]he [s]tipulation of [s]ettlement contains no compensation
or relief for the class members. Indeed, all of the evidence
suggests that class members are in precisely the same
financial and legal position today, as they would have been
had this litigation never been filed. In spite of the fact that it
is devoid of benefits for the class members, [c]lass [c]ounsel
has urged this court to approve the settlement, grant the
[d]efendants their res judicata and presumably grant him
several hundred thousand dollars in attorney's fees. This
action appears to be the class litigation equivalent of the
"Squeegee boys" who used to frequent major urban
intersections and who would run up to a stopped car, splash
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recognize the complexity of merger litigation and the Delaware courts' expertise in such
matters. See In re Trulia, 129 A.3d at 899 (explaining that the Delaware Court of
Chancery has "extensive experience in adjudicating cases of this nature"). In the past,
"[t]he Florida courts have relied upon Delaware corporate law to establish their own
corporate doctrines." Connolly v. Agostino's Ristorante, Inc., 775 So. 2d 387, 388 n.1
(Fla. 2d DCA 2000) (quoting Int'l Ins. Co. v. Johns, 874 F.2d 1447, 1459 n.22 (11th Cir.
1989)).6 In light of the above considerations and the lack of specific guidance in Florida
regarding disclosure settlements, we adopt the standard set forth in the well-reasoned
In re Trulia decision and clarified in the Hays decision. We conclude that when a
Florida trial court is asked to approve a disclosure settlement in a class action merger
lawsuit, in order for a disclosure settlement to pass muster, the supplemental
disclosures must address and correct a plainly material misrepresentation or omission
and the subject matter of the proposed release must be narrowly circumscribed to
encompass nothing more than disclosure claims and fiduciary duty claims concerning
the sale process, if the record shows that such claims have been investigated
sufficiently.7
soapy water on its perfectly clean windshield and expect
payment for the uninvited service of wiping it off.
Id. at *10.
6And
regarding the Hays decision, we note that "Florida courts often look
to federal cases for guidance as persuasive authority on issues regarding class
actions." Barnhill, 905 So. 2d at 198.
7The
In re Trulia/Hays standard specific to disclosure settlements is not
inconsistent with the more general Grosso standard. But because the In re Trulia/Hays
standard is more tailored to disclosure settlements, it should be applied in such cases.
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Although the trial court acknowledged In re Trulia, the trial court applied
only part of the standard; the trial court focused only on the release of claims. The trial
court failed to assess the value of the supplemental disclosures.8 The danger in
focusing solely on the release is that a meritless action may be settled as long as the
release is related to the claims. This test permits plaintiffs in deal litigation to prevail on
any settlement and seek attorneys' fees as a result, no matter how meager the
consideration, as long as the plaintiffs tailor the release to the claims raised in the
litigation. This methodology contributes to the spawning of this type of litigation.
Further, the trial court did not consider whether the released claims, which should be
narrowly tailored to the complaint, had been investigated sufficiently, as evidenced by
its lack of findings on this issue.
The trial court did not consider the supplemental disclosures that Quality
provided to shareholders in August 2015. In order for the settlement to be approved,
those supplemental disclosures must have contained information that corrected a
misrepresentation or omission in the original disclosures and that information must have
been of such a nature that a reasonable shareholder would likely have considered it
important in deciding how to vote on the merger. Because we now hold that the In re
Trulia standard is applicable and because the trial court's ruling is based, at least in
part, on an incorrect legal standard, we reverse the trial court's approval of the
settlement and remand for the trial court to apply the proper standard. See Thompson
v. Douds, 852 So. 2d 299, 305 (Fla. 2d DCA 2003) ("Usually when a trial court applies
8We note that despite acknowledging Grosso, the trial court did not
consider the supplemental disclosures under the Grosso factors generally applicable to
class action settlements.
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the incorrect legal standard, we reverse and remand for a new hearing at which the trial
court must reconsider its decision in light of the proper legal standard."); Wilson v.
Wilson, 827 So. 2d 401, 403 (Fla. 2d DCA 2002) (reversing order denying relocation
that was "based, at least in part, on an incorrect legal standard" and remanding for trial
court to consider issue "under the correct legal standard"). In light of our reversal on
this issue, we also reverse the denial of Griffith's request for fees and remand for
reconsideration of such request after the trial court determines whether to approve the
settlement under the proper standard.
Affirmed in part, reversed in part, and remanded for further proceedings.
KHOUZAM and BLACK, JJ., Concur.
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